The Deafening Silence of Conservative Stars on the Constitutionality of the Voting Rights Act

Doug Kendall

One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi? None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate. As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).

Perhaps the problem is that many conservative scholars have been harshly critical of the Court’s jurisprudence on this topic, especially the “congruence and proportionality” test established in City of Boerne v. Flores for reviewing the constitutionality of congressional action under the Fourteenth (and presumably the Fifteenth) Amendments. Indeed, the scholarship of conservatives such as McConnell, Calabresi, Michael Stokes Paulsen, and Judge John T. Noonan forms a critical anchor of the brief Constitutional Accountability Center filed in Shelby County on behalf of the federal government. Judge Noonan, a Reagan appointee to the Ninth Circuit, wrote a book called Narrowing the Nation’s Power that accuses the conservative majority on the Rehnquist Court of issuing “decisions that return the Country to a pre-Civil War understanding of the nation.” McConnell penned a deservedly-famous Harvard Law Review article blistering the Court for breaking faith with the Fourteenth Amendment in Boerne, calling the Religious Freedom Restoration Act (RFRA) “precisely the sort of enforcement statute envisioned by the Fourteenth Amendment.” And, Calabresi, too, has argued that RFRA was “an appropriate remedial measure to define what constitutes an abridgement of freedom to worship.” On the question of what constitutes “appropriate legislation,” he argued that “more deference to Congress with its greater fact-finding resources both makes a lot of sense and seems contemplated by the text.” Surely, these same constitutional principles apply to the Voting Rights Act, which enforces the Fifteenth Amendment’s clear constitutional prohibition on racial discrimination in voting.

There really isn’t another side on the constitutional question in Shelby County. If there is a serious, scholarly defense of congruence and proportionality as an original matter, I haven’t seen it. Neither has Justice Scalia, who after “reluctantly” joining Boerne and other cases applying the congruence and proportionality tests, dropped off the bandwagon in 2004, with this blistering criticism:

I yield to the lessons of experience. The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy driven decisionmaking. Worse still, it casts this Court in the role of Congress’s taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress’s homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test (congruence and proportionality) that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed.

Perhaps National Review editor (and prominent conservative) Ramesh Ponnuru put it best in a blistering op-ed in the New York Times that appeared shortly after the most recent Voting Rights Act case, NAMUDNO v Holder, came down:

[W]hen it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint. . . . None of the justices — not even Justice Thomas, the most originalist member of the court — discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary. The occasion for the amendment was, after all, the end of a civil war brought about in significant part by judicial overreaching in the Dred Scott case.

Ponnuru’s point is a simple and powerful one: if conservatives believe the Voting Rights Act is bad or outdated public policy, they should take these complaints to Congress, not the courts. It appears that the reason we’ve heard so little from the scholarly right on Shelby County is that the scholarly right itself believes the case against the constitutionality of the Voting Rights Act is exceptionally weak.

In my comment in the original post on the CAC brief, I wondered whether Justice Scalia would identify "congruent and proportional" as reliance on legislative history. Thanks to this post, I now see that he has, in Tennessee v. Lane. Unfortunately, his dissent there leaves no room for prophylactic legislation under the section 5 of the 14th Amendment. Fortunately, it possibly does leave room for prophylactic legislation under the 15th Amendment, citing South Carolina v. Katzenbach. Unfortunately, he equates "facially neutral" with "non-discriminatory", and considers redistricting an inherently political process, not possessing "neutral principles" such as compactness. Therefore, while he might find pre-clearance an appropriate remedy, clearance would have to be granted in the absence of discriminatory language.

Hibbs, Garrett and Lane are all products of the O'Connor Court. Alito is not O'Connor.

At some point, the John Lewis brief becomes the most relevant. These rights were defined away by Dred Scott v. Sanford, won in the Civil War, taken away by the Supreme Court in the Civil Rights Cases and Plessy v. Ferguson, won back by the Civil Rights Movement, and taken away again by the Supreme Court. Holocaust deniers like Hashim Mooppan in SCOTUSblog may see the overturning of Section 5 as the assertion of constitutional limits by the Court. But these rights were won by the blood of white and black Americans.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. 'Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.' If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.' (Lincoln's Second Inaugural Address)

Calling me a "Holocaust denier" is pretty absurd, given that the first section of my SCOTUSblog post emphasized why Section 5 *was justified in 1965* due to the horrific conditions that *existed in the South back then.* I simply disagree that those abysmal conditions are *currently present*. Indeed, your description of those conditions as Holocaust-like just proves my point: while analogizing Nazi Germany to the Jim Crow South is perhaps colorable (though strained in obvious ways), the analogy has become patently preposterous for the covered jurisdictions today.

That said, please do try to make such comments in more public and visible fashion. I'm sure that the conservative Justices on the Court will view favorably the position of those who try to equate them with Nazi sympathizers.

"Holocaust deniers like Hashim Mooppan in SCOTUSblog may see the overturning of Section 5 as the assertion of constitutional limits by the Court. But these rights were won by the blood of white and black Americans."

might better have eliminated "Holocaust deniers like" as gratuitous. But much of Hashim's response goes well beyond those words. I don't know if Hashim is a Holocaust denier. but he goes beyond the pale in ascribing to r.friedman this:

"Indeed, your description of those conditions as Holocaust-like just proves my point: while analogizing Nazi Germany to the Jim Crow South is perhaps colorable (though strained in obvious ways), the analogy has become patently preposterous for the covered jurisdictions today."

Hashim adds more fuel in his response with this:

"I'm sure that the conservative Justices on the Court will view favorably the position of those who try to equate them with Nazi sympathizers."

That's a real stretch if Hashim really believes that r.friedman with his comment was trying to equate conservative Justices on the Court with Nazi sympathizers.

As for Hashin's current view on the merits:

" I simply disagree that those abysmal conditions are 'currently present'*.

we've come a long way, baby, but we still got a long way to go. Consider Sen. Lindsey Graham's observation during the 2012 campaigns about there not being enough angry white voters. Also consider the fact that democrat votes significantly exceeded republican votes nationally in House elections in 2012 with GOP control maintained with the help of creative gerrymandering, perhaps an issue to be addressed by Congress pursuant to the enforcement clause of the 15th Amendment in support of one-person, one vote.

Hashim, thank you for coming out from behind the no responses policy of SCOTUSblog.

Slavery is the original sin of the US Constitution and even with the Reconstruction Amendments, slavery still retains its impact in the gross inequalities of representation of the Senate and the Electoral College. It can be seen in 11th Amendment jurisprudence and the pre-Civil War authorities being cited in the current controversy over the scope of the treaty power.

Those who advocate the "vertical" division of power in the Constitution or who deny Congress the ability to control state power under Article I are only recreating the power relationships of slavery. Before the Civil War, people were citizens of states; after the war, people became citizens of the nation, with certain national rights of citizenship expressed in the Reconstruction Amendments and in the Civil Rights Acts. Why does Congress not have plenary power over the badges and incidents of this citizenship? (It is your refusal to recognize this change that caused me to call you a Holocaust denier, referring of course to the US holocaust.)

Probaby the South looks different to you in George Mason land (how interesting that conservative legal scholars foregather at a university named for someone who opposed the constitution on states' rights and pro-slavery grounds) than it does here in Atlanta. We have seen the party reversal along racial lines that took place in response to school integration, voting and civil rights acts. We have seen the white suburban counties reject a mass transit referendum on racial grounds. We have seen the state legislature remove power from the black-majority governments of Atlanta and Fulton County through the taking of the Atlanta Airport from the City of Atlanta and giving it to neighboring Clayton County for tax purposes, by imposing regional and state authorities over transportation planning and other municipal functions, and by setting up white enclave cities within Fulton and neighboring black-majority DeKalb County. Then there are the editorial howls that emerge when Atlanta streets named for Ku Klux Klan leaders are renamed for Civil Rights leaders. But streets still remain with multiple names marking the successive borders of the legally-established black ghetto. And Atlanta is among the most progressive cities in the South.

You can also read the John Lewis amicus and the MALDEF contribution at SCOTUSblog to see other examples of how things have not changed.

And what about the post-Civil War years when white attitudes resulted in the violent suppression of the civil rights of blacks? Of the lynchings and of vagrancy prosecutions leading to convict leasing and of land seizures through false tax sales? Of President Wilson saying that "The Birth of a Nation" portrayed history pretty accurately and of the white attacks on black and their neighborhoods which occurred in many cities where the film was shown? Is this not a reason for prophylactic measures to remain in place.

American racism is a cultural feature which we cannot eradicate, we can only prevent it from gaining power.

Again, I think that your post just proves my point. Compare the discrimination that you discuss in modern times (denial of mass transit, transfer of Atlanta Airport), with the discrimination of earlier times (lynchings). I'm not saying that there isn't still racism and discrimintaion, just that it's much less serious, such that Section 2 is now an adequate remedy -- the MALDEF contribution is a perfect example, since LULAC was itself a Section 2 case, not a Section 5 case. To be perfectly frank, your suggestion that "things have not changed" at all is absurd, given, among other things, that the Governors of both South Carolina and Louisiana are non-white, which would have been inconceivable in 1965.

Also, I find it interesting that you suggest that "the South looks different" in Virginia than in Georgia. After all, Virginia is a covered jurisdiction too. (Btw, I don't teach at George Mason; that's one of the counsel for the Shelby County petrs.)

Hashim, it's very easy to find your Metro stop. I grew up in DC, I remember the reputation of Virginians as opposed to DC residents. I also remember when DC was the station where interstate buses became segregated, I remember the violent resistance to desegregation in Danville and Prince William County, and the massive resistance of the state. That may have changed due to in-migration, since Northern Virginia was an Obama stronghold, but that doesn't mean that people my age don't still have attitudes from back then, or that we haven't passed those attitudes on to our children. Indeed, some of my contemporaries and their children attended segregation academies. And the local power structures tend to be local. Had you gone into practice in Richmond, you would have found out.

As much as you would like to believe that things have changed, I don't think the victims of discrimination yet feel protected, even with Section 5. At some point you have to decide for whom the law will be a sword, for whom a shield.

Regarding Ramesh Ponnuru's observation that in race cases conservatives abandon originalism and judicial restraint, perhaps these conservatives are perceptive enough to realize how differently Boling v. Sharpe would have been decided if the Due Process clause of the Fifth Amendment were interpreted according to 1791 lights.

Suppose the Republicans regain control of both houses of Congress. Would originalist philosophy tolerate a hypothetical statute restoring Jim Crow status to the District of Columbia?

The "reasonableness" review there would be colored, or something, by the existence of slavery and the differential treatment of blacks generally. After the 13A, slavery was prohibited, and the 14A set up universal citizenship.

Due process also tends to have a common law flavor. It reflects changing times to that degree. Scalia cites "history" and "tradition" a lot and after 100 years of so, things change there.

But, even without that, the changes of the "law" would warrant different treatment of racial classifications under the DPC than would have been applied in 1791.

As to the back/forth, things have changed but don't know if the change was enough to end preclearance. There being reasonable debate, I would let electoral politics decide the question. Me personally, I would support general federal voting rights legislation.

But, politics is the art of the possible, so the re-authorization took a more conservative approach.

This deafening silence continues on so I decided to continue my quest for the Holy Grail of Interpretation/Construction of the Constitution. This led me to a recent issue of the Florida Law Review posted at Concurring Opinions. The lead article is Martin Redish and Matthew Arnould's "Judicial Review, Constitutional Interpretation and the Democratic Dilemma: Proposing a 'Controlled Activism' Alternative." Since the article is more than 50 pages in length, I reverted to my habit in law school back in the early 1950s of first reading a "dissent."

So I chose Greg Lawson's friendly critique "No History, No Certainty No Legitimacy ... No Problem: Originalism and the limits of Legal Theory," a mere 20+ pages. Another reason I chose Lawson is the sometimes levity he provides in critiquing. I wasn't disappointed as his Section and Subsection headings were footnoted "With apologies ... " to certain persons. Lawson does not really challenge Redish's attacks on originalism and non-textualism, but he comes up with his fictive "reasonable person-originalism" which Redish did not address since he may not have know of it. Lawson's version of originalism may have been tongue in cheek. But he focuses upon such "person" in 1788 (and perhaps later years with the adoption of Amendments). Many of us are aware of tort law's reasonable person or in fiduciary law's reasonable investor. Lawson stresses that with his "person" version, one isn't concerned with multiple parties. But he doesn't tell us how or where such reasonable person could be identified to determine how he/she understood the Constitution or an Amendment. Perhaps in time Redish may respond.

I decided not to read any of the other critiques (dissents) and jumped to the Redish et al article. More on this later.

But I urge those interested in the search for the Holy Grail to visit Concurring Opinions to check out this Florida Law Review issue which provides links for downloading its article.

The Redish article skewers the various versions of originalism quite effectively, naming names, including our host Jack Balkin's version - but, as noted above, not Lawson's "reasonable person-originalism" of 1788 and subsequent years for Amendments adopted.

And the Redish article also effectively skewers non-textual theories, including the Living, Invisible and Unwritten Constitution theories, also naming names.

So the Redish article then proposes its own theory: the Controlled Activism Model utilizing current meanings of words.

The gauntlet has been dropped against the large armies of originalists and non-textualists who can stop squabbling with each other and attack Redish and his co-author. Will this get us any closer to the Holy Grail of interpretation/construction of the Constitution? Will Monty Python come to the rescue?

I think Redish and his coauthor really skewered both originalism and non-textualism quite effectively. Their alternative theory needs work, as noted by Lawson in his review.

At the Originalism Blog the agenda for an annual conference of the originalism school last week was posted and Prof. Redish was included on a panel on the takings clause. I wonder how originalists treated him. Was the Redish article brought up? Some of the names he named were listed in the agenda. Might we hear from a fly on the wall?

Let me make it clear: I welcome the Redish article. Readers should NOT omit the footnotes.

The Voting Rights Act aids conservatives in getting their candidates elected over moderates. Were there no VRA, we'd have fewer majority-minority districts which effectively pull a lot of more liberal voters out of Republican congressional districts, especially in the Deep South. Were those voters included in those districts, the districts might elect more moderate members of Congress.

I'm pleased that Dilan is getting back on topic and I may have some comments to follow-up on his. But first, I want to get back to the Redish article, which is not completely off-topic as it relates to the Scholars' Brief that relies upon originalism, history and precedents. No, the Redish article does not address the appeal in Shelby County. But the Redish article is critical of Heller, Roe and Lochner, especially Heller which is strongly challenged for its bad history and linguistics. (Regarding the criticism of Lochner, can we expect to hear from the "Rehabilitation Lochner" chorus?)

As to Dilan's comment, I had suggested in an earlier comment at this or at the Scholars' Brief post that perhaps the silence of conservatives is fear that Section 2 of the 15th Amendment might result in a statute attacking gerrymandering to apply more of a one person/one vote balance in House races to counter the fact that in 2012 there were significantly more votes for Democrats than for Republicans nationally but the latter retained their majority because of gerrymandering steps taken at state levels over the years.

I have long thought Dilan cites something that is open to debate though support from various civil rights activists lead me to accept the status quo. Still, I think that issue is separate in that many conservative scholars would probably target that as an illicit use of race.

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I respect GM not opening comments in his addition to the current discussion of the book on ordered liberty. I would add though that Prof. Sandy Levinson in his embarrassing 2A article twenty years ago did raise that issue. To me, I would consistently apply the principle to gun ownership & think some respect by liberals (as is the case for many) is both pragmatically and principally appropriate. I am saddened that Heller split so crudely given various liberal scholars accept the result, if not the reasoning.

Dean Erwin Chemerinsky's brief (11 pages) and well-reasoned "The Elusive Quest for Value Neutral Judging: A Response to Redish and Arnould" is a must read at the Florida Law Review referenced in an earlier comment. Dean C's response focuses on a critical review of the Redish article's "controlled activism" interpretive model. Dean C does not focus so much on the Redish article's challenges of originalism and non-textualism. Rather, Dean C focuses on a judge's values, which cannot be readily neutralized. Consider this paragraph that begins Part III of Dean C's response:

"Almost thirty years ago, Professor Bruce Ackerman observed that '[h]ardly a year goes by without some learned provessor announcing that he has discovered the final solution to the countermajoritarian difficulty, or, even more darkly, that the countermajoritarian difficulty is insoluble.' Redish and Arnould have now offered their effort to do so."

So the quest for the Holy Grail of constitutional interpretation/construction will continue. It has been said that it takes a theory to beat a theory. But a theory is not necessary to demonstrate that a theory, theories have problems, like originalism and nontextualism, that the Redish article has well demonstrated.

Dean C does not offer his own theory but demonstrates the weaknesses of Redish and Arnould's theory by showing how cases have been decided by judges/justices over the years, using values, closing with a focus on the "real question": "What values are protected by the Constitution and how should they be applied?"

I expect more reactions to the Redish article, especially from originalists.

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